BEFORE THE ADDITIONAL BENCH DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MYSURU.

Consumer Complaint (C.C.)No. 1029/2016

Complaint filed on 07.01.2016

Date of Judgement.31.01.2017

PRESENT                                : 1. Shri Ramachandra  M.S.,  B.A., LL.B.,

                                                          PRESIDENT

                                         2. Shri  Thammanna,Y.S., B.Sc., LL.B., 

                                               MEMBER

Complainant/s               :                   Smt. Savitha S

W/o Madhusudhan G

# 47, 5^th cross, 7^th main,

Saraswathipuram,

Mysore.

                                                  (Sri M.L. Shashi Bhushan., Advocate)

                                                                V/s

Opponent        /s                     :       Sri. Kanka Kaginele House

                                                          Building co-operative Society Ltd.,

                                                          Office at Pushpahree complex

                                                          building no.791, 13^th main road,

                                                           4^th stage, TK layout , Mysuru Rep.

                                                          By its Authorized Secretary,

                                                           Sri Chandrashekar.

                                             (Sri V.Krishna Murthy., Advocate)

    SHRI RAMACHANDRA . M.S., PRESIDENT

JUDGEMENT

The complainant has filed the complaint under section 12 of the C.P.Act 1986. against the opposite party pray for the  relief of compensation  and  other reliefs.

2. The brief facts of complainant is that the opposite party is a co-operative society and the said co operative society is constituted and registered as per the Kanakata co operative societies Act in Vide Regn. no JRM: B2HHS:31432:05-06 and the above said co operative society was created for the purpose of purchasing of an agricultural land and convert the same into residential sits and allot the same to the members of the above said opposite party co operative society.

3.It is further submitted by the complainant that the complainant is also a member of the said opposite party i.e., Sri. Kanaka Kaginele House Building Co operative Society and her share/membership no. 1588 and the complainant has paid a sum of Rs. 1,75,000/- on 20.12.2008 and Rs. 50,000/-  on 25.10.2009 and in total Rs. 2,25,000/- towards the purchase of residential site and on 20.12.2008 Rs. 1000/- as share deposit amount by the complainant as per the instructions from the said co operative society and the opposite party had also promised to allot the residential site after getting the conversion permission from the concerned office. In this aspect the opposite party had also issued a share pass book for the complainant. The said share pass book is also furnished for the kind perusal of this Hon’ble court.

4. It is further submitted by the complainant that in the annual general body meeting of 2008 itself the opposite party had reported that they had purchased nearly 55 acres of land by paying full amount and also got the permission from the concerned departed for conversion of the said land but till to this day the opposite party have neither purchased any land nor got permission for conversion of the said land.

5. It is further submitted by the complainant that the said opposite party i.e., the said co-operative society is also involved in illegal activities which is against the bye-laws of the said co operative society and they also indulged in providing money to unauthorized land developers.

6. It is learnt by the complainant that still today the said co operative society has not neither acquired the agricultural land for converting in to residential sites nor even got permission from the concerned office for the said conversion. It is also learnt by the complainant that the said co operative society had also misappropriated the funds collected for the purpose of purchasing the agricultural lands for converting in to residential sites.

7. Under the above circumstances the complainant left with no other option had issued a legal notice through his counsel to the opposite party dated 14.12.2015 by RPAD calling upon the opposite party to repay the said amount of Rs. 2,26,000/- paid by the complainant along with the 18% interest on the above said amount within the 15 days from date of service of this notice . Even though they said legal notice dated 14.12.2015 is served  upon the opposite party on 19.12.2015 they have neither replied nor complied to the said notice Hence this complaint.

8. The notice to the opposite party is duly served and also represented through  counsel and filed version and affidavit in the version the opposite party has admitted that the complaint is the member of society in no 1588 and also he has paid a sum of Rs. 2,25,000/- towards site consideration on 25.10.2009.

9.Further that the opposite party is the processing of purchase of land for formation layout to allot the same to their member and further they have purchased 55 acres of land get permission for conversion of land the opposite party contends that the allegation made in para 6,7 of complainant denied as false and shifted the burden to prove the same.

10. Further the opposite party denied that complainant had issued legal notice by calling opposite party to repay the amount of Rs. 2,26,000/-.

Further the opposite party has admitted that they have received entire consideration amount from the complainant. In para 20 of version the opposite party clearly admits that they are making all efforts to form the layout at the  earliest and to allot the site to its members as well as to this complainant. I view of the same they claim there is no deficiency in service and prayed for dismissal of complainant.

11. To prove the facts, the complainant and opposite party lead their evidence by filing affidavit along with documents. On perusal of the documents placed on board, and on hearing oral arguments, perused written arguments, matter posted for orders.

12. The points that arise for our consideration are;-

1. Whether the complainant proves that there is deficiency in service and unfair trade practice on the part of opposite party by not allotting the site to the complainant and thereby he is entitled for the reliefs sought?

2. What order?

13. Our answer to the above points is as follows;

1. Point No.1: In the partly affirmative

2. Point No.2: As per final order for the following;

REASONS

14 . Point No.1:-  That the complainant has established that he is the member and shear holder of opposite party society and also he has already paid a sum of Rs. 2,26,000/- to opposite party towards the consideration of site which is to be allotted by opposite party society. In support of his contention complainant has produced documents pass book, share certificate, two cash payment receipts and ID card. All these documents supported his claim.

15. Further the opposite party also admitted all the above transaction but there only contention is that due to some hurdles they were unable to complete the layout formation work, consequently. Unable to allot the sites to their members as well as to complainant opposite party have also assigned many reasons for delay for allotment of sites, here apart from making mere statement they have not produced any documents in support of their defence this shows that the defence taken by opposite party is only to defeat the lawful claim of complainant.

16. Further in para 20 the of version the opposite party has admitted that they are making all efforts to form the layout at the earlist  and to allot the site to its members as well as to complainant. The opposite party by way of this admission have supported and proved the claim of complainant by this admission it  is also proved that there is delay in formation of layout out on the  part of opposite party, by way of this admission the entire defence taken by him has to be held as not proved. It is only mere denial of complainant lawful claim.

17. Further the failure of opposite party to give reply to the legal notice show the careless attitude this act also amount to deficiency in service on their part it is nothing but a unfair trade practice. For Which they are liable to pay compensation to the complainant.

18. For the above reasons by looking at the facts and documents produced by complainants has proved his case beyond reasonable doubt and also complainant proved that there is a deficiency  of service on the part of opposite party by doing unfair trade practice.

19. According to this forum we answered Point no.1 in the partly affirmative and pass the following:

20. Point no.2:- For the above discussion we here by proceed to pass the following:

ORDER

1. The complaint is hereby allowed in part.

2. The opposite party is directed to pay a sum of Rs 2,25,000/-    to the complainant within 60 days of this order. With interest at 18% p.a.from 20.02.2008 till the payment is made.

3. The opposite party is directed to pay a sum of Rs 10,000/-    towards mental agony and Rs. 5,000/- towards litigation   expenses and   also a sum of Rs. 10,000/- towards unfair  trade practice  has to be   paid to the complainant within 60 days of this order.

4. In default the opposite party shall pay interest at 12% p.a. on the

said total sum of Rs  25,000/- from the date of this order till payment.

5. In case of default to comply this order, the opposite parties shall

undergo imprisonment and also liable for fine under section 27 of  the C.P. Act, 1986.

6. Give the copies of this order to the parties, as per Rules.

(Dictated to the stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on the 31^st   January 2017)  

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,    

          Member.                                                           President.                                             

LIST OF WITNESSES EXAMINED AND DOCUMENTS PRODUCED ON BEHALF OF COMPLAINANT

Evidence by way of affidavit on behalf of complainant:

CW-1           :  Smt. SAVITHA

List of Documents Produced on behalf of complainant:

1        :         Pass book

2        :         Two amount paid receipts

3        :         Share certificate

4        :         ID card

5        :         Legal notice

6        :         Postal acknowledgement  receipt

LIST OF WITNESSES EXAMINED AND DOCUMENTS PRODUCED ON BEHALF OF OP.

Evidence by way of affidavit on behalf of OP :

RW-1 :         CHANDRASHEKAR

List of Documents  Produced on behalf of OP :

Nil

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,    

          Member.                                                            President.